Defamation Bill

Debate between Baroness Hayter of Kentish Town and Lord Mawhinney

Thursday 17th January 2013 Grand Committee

[Lord Mawhinney]

My Lords, I feel, on a personal level, the need to start, not exactly by making an apology, but by recognising that I have been playing far more of a role in this Committee than my record over 30 years in Parliament would have caused anyone to anticipate, or than I would find comfortable. I have interpreted my responsibility as chairman of the Joint Committee in carrying through the work of the Joint Committee to this Committee so that when the government Bill did not cover what we recommended I could at least draw the issues to the attention of this Committee. In that sense and spirit I move my last amendment; I am probably as pleased to be at the end of the process as much as the rest of your Lordships are.

We were conscious that we were doing two things. Defamation seems to be one of those areas of law where the common law has prevailed. What has been codified has been minimal, and judges have been left to move the thing forward. The argument for that has been the great flexibility of common law. We got evidence that not many people understood the common law and that there was benefit for the citizenry to have more codification in this area than has traditionally been the case. Hence this final amendment, to set out some help: to ask the Government to help people to understand the codification, what is left of the common law, and what more might be usefully codified and then to undertake to report to Parliament annually, so that all of us can see that as what is agreed in Parliament is implemented, so the public benefit. I thank my colleagues for their patience and, for the last time, invite them to allow me to move the amendment.

[Baroness Hayter of Kentish Town]

My Lords, the Committee has heard from me before, as has the House at Second Reading, on my admiration for the concentration of the noble Lord, Lord Mawhinney, both on the ordinary citizen—particularly in Peterborough—who might get caught up in a libel case, whether as claimant or defendant, and also on the need of anyone involved to be able to read and understand the Bill after enactment without the need of lawyerly guidance, as he has just outlined. This is his final throw and we should support him.

We do not want the courts to so run away with interpretation and reinterpretation of the Act that a simple reading of it would give very little guide to the current law on defamation, so nuanced will it have become in learned judgments. I imagine that the noble Lord, Lord Mawhinney, would want Parliament to come back to this at that stage and say, “Look, the Act no longer represents the law; we should amend it”. We concur completely with his desire that untutored people should know their rights and their duties in regard to defamation and we hope that the Government can respond positively to the amendment.

In the mean time, as we close this part of our scrutiny of the Bill, I thank the Lords Deputy Chairmen who have guided us through procedures; the Bill team, who have assisted us throughout, both here and in other meetings, for their patience; the Ministers for their mostly good humour and occasional cheekiness; and our colleague, Sophie Davis, for keeping my noble friend Lord Browne and myself as close to the straight and narrow as was in her ability to do.

Defamation Bill

Debate between Baroness Hayter of Kentish Town and Lord Mawhinney

Monday 17th December 2012 Grand Committee

[Lord Mawhinney]

As always, I am grateful to the noble Lord for his interjections. Let me cheer him up by assuring him that I was aware of that even before my noble friend said as much a little while ago. In fact, I remember being told that when we were holding our hearings. However, let me be plain about my difficulty here. This subject has been kicked into the long grass many times over the past 50 years, something my noble friend Lord Lester well knows because his was one of the balls that got kicked there. He is asking the Committee yet again to accept on faith a promise made by a Government Minister that there will be heaven tomorrow, but it falls just a little short. The truth is that while we will all await with interest what the judiciary decides would be an appropriate set of changes, if any, it is perfectly legitimate for Members of your Lordships’ House to ask the Government, “What changes do you think need to be made and what are you going to do about it?”. In essence, that is the question which lies behind the amendment, although it is in the framework for corporations.

While I am on my feet, perhaps I may say that so far as Amendment 8 is concerned, I thank the noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady Hayter of Kentish Town. It is extremely close to the wording used in our report, and in that I suspect that I am looking at the hand of the noble Baroness, Lady Hayter. I thank her for valuing it. I beg to move.

[Baroness Hayter of Kentish Town]

Before I speak to the amendment that has just been moved, and to Amendment 8 which is tabled in my name and that of my noble friend Lord Browne and the noble Lord, Lord Lester, perhaps I may also pay tribute to the noble Lord, Lord Mawhinney, for his work as chair of the Joint Committee. The Minister will recall, because he was at the Fabian Society even before I was, that we produced a book entitled The ABC of Chairmanship written by Walter Citrine. It was a brilliant book, but I have to say that I feel that a small codicil should have been added to it, having served under the chairmanship of the noble Lord, Lord Mawhinney, which is this: see how he does it because that is the best way to do it. I learnt a great deal from him.

As the noble Lord, Lord Mawhinney, has said, our recommendation comes from the Joint Committee and is broadly supported, including by Liberty, the Libel Reform Campaign, the Media Lawyers Association and Which?. As has been suggested, many of the cases which led to the pressure to reform of the law on defamation did not come from hurt individuals but from corporations, often using their deep pockets and access to lawyers to stifle public criticism of them or their products.

It was an American corporation that sued cardiologist Dr Peter Wilmshurst; the British Chiropractic Association sued Simon Singh; GE Healthcare sued Danish radiologist Professor Thomsen; Trafigura sued the BBC; manufacturers are forever threatening or trying to sue Which?; and McDonald’s infamously and, as it turned out, rather stupidly sued two individuals. Nature, the Lancet and the British Medical Journal—organisations that almost by definition exist for the public good—are no strangers to the threatening letters, mostly from corporations. Similarly, we heard in the Joint Committee from Mumsnet, which told us that it was very often the purveyors of baby foods and products, rather than individuals protecting their reputations as parents, which threaten to take action. It is often corporations which do not want negative reviews or sensitive information in the public domain that use this threat.

Yet the high cost of defending even a ludicrous claim brought by a corporation is an inequality of arms—or bullying, as the noble Lord, Lord Mawhinney, said. It is because a corporation can bring a claim where a defamatory statement is said to harm its trading or business reputation that a threat is all that is needed. The Joint Committee on Human Rights regretted the absence from the Bill of some reduction of the use of defamation proceedings by corporate claimants. Its view is that,

“businesses ought only to succeed where they can prove actual damage. The Bill should be amended so as to provide that non-natural persons are required to establish substantial financial loss in any claim”.

The report refers to the evidence of Professor Phillipson, who said that the failure to impose any restrictions on corporations’ ability to sue,

“renders the law on reputation inconsistent and incoherent. Defamation law and the protection afforded under Article 8 has developed on the basis that the protection of an individual’s reputation is a significant human rights issue. Corporate claimants have neither personal emotions nor dignity, and yet are treated as natural persons for the purposes of defamation”.

The report also quotes the Culture, Media and Sport Select Committee’s call for a new category of corporate defamation, by requiring a corporation to prove actual damage to its business before an action can be brought.

The Joint Human Rights Committee dismissed the MoJ’s refusal to countenance any change and concluded that,

“businesses ought only to succeed … where they can prove actual damage”.

Regrettably, as we know, the Government opposed a similar amendment to this in the Commons on the grounds that a corporation has a reputation, even where that does not affect its bottom line. We on this side accept that where damage to reputation affects the company's finances—for example, one can imagine an incorrect allegation that Perrier caused the current vomiting virus that is going around and that that affects the sales and the future of that company—redress should be possible in such cases.

Our amendment is modest. It does not seek to take away all rights for companies to sue, but would merely require them to show substantial financial loss before they were able to start an action.